Roe v. Wade paralyzes the Court

Incredibly, someone at the Supreme Court – maybe whoever leaked the original Alito Draft – continues to leak information from the Court! Furthermore, the latest leaks show that the first Roe v. Wade leak, or the opinion itself, paralyzed the Court. In fact the Court has not even held any meetings since the first leak. They will hold their first meeting today.

From the first Roe v. Wade leak to today

Recall: on May 2, someone leaked the first draft of Samuel A. Alito’s proposed majority opinion in Dobbs v. Jackson Women’s Health Organization.

According to this, Justice Alito delivered a brutal summary of abortion law and the Roe and Casey decisions. Alito essentially accused the Court of arrogating to itself the power to:

1. Legislate from the bench, and
2. Presume to tell the American public to accept the Court’s word as law.

Here, regular readers can review everything CNAV has said about this leak and its aftermath. But yesterday morning, Politico got yet another leak from the still mysterious Mister PFWTS. (For those of you in Rush Limbaugh’s Rio Linda, PFWTS means Person Familiar With The Situation. And it could still be a Mrs. or a Ms.) According to them, even since February 10, the date of the Alito Draft, no other draft opinion has circulated. That means we have no dissents, and no concurrence in part and dissent in part from Chief Justice Roberts.

CNAV would have expected the dissents to have come in, and Alito working on his revision and rebuttal to them. But instead: nothing. Nor has the Court even met since the leak happened; CNAV would have expected them to meet the next day.

Conference on schedule for today.

Instead they will meet today (May 12), according to no fewer than two Messrs. PFWTS. They state that the distribution of votes on the Dobbs case remains the same:

• Five votes to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey,
• One vote (Chief Justice Roberts) to save the Roe and Casey precedents but still reverse the Fifth Circuit Court of Appeals and the U.S. District Court for (presumably) the Southern District of Mississippi, thus allowing the Gestational Age Act of 2018 to stand, and
• Three votes to affirm the Fifth Circuit strike down the Mississippi law, and preserve Roe and Casey intact.

The identities of the voting Justices also remain the same:

• Alito, Barrett, Gorsuch, Kavanaugh, and Thomas JJ in the majority,
• Roberts CJ to concur in part and dissent in part, and
• Breyer, Kagan, and Sotomayor JJ dissenting in whole.

But regardless of how any of them plan to vote on the Dobbs case, all agree on one thing. And that is: the Alito Draft leak is the worst thing that has ever happened to the Court. Someone has betrayed the Court, and all nine Justices feel that.

Or do they? CNAV now suspects one of two Justices of arranging the leak:

• Sotomayor, given her reputation for intemperate questioning at oral argument and hiring the “wokest” clerks, and
• Roberts, given how quickly the fences went up around the Courthouse and the rent-a-mob gathered almost immediately thereafter.

What could happen?

Who can tell? When five Justices said they would vote to overturn Roe and Casey, Roberts assigned Alito to write for the majority. Maybe had he assigned Thomas or any of the Trump appointees, the usual give-and-take would have started back in February. Instead, Roberts assigned Alito. Now Alito has a reputation for writing opinions as brutal as the late Antonin Scalia used to write. Roberts should have thought of that when he made the assignment.

So when Alito turned in an opinion that savagely called the Court on its historical arrogance – in a scene that would have had Thomas Jefferson grinning and saying, “See? I told you so” – he literally took his colleagues’ breath away. If these Messrs. PFWTS are telling the truth, nobody could think of anything to say back! So Chief Justice Roberts, “Mister Consensus,” tried to peel off one of the Trump appointees (Barrett, Gorsuch, and Kavanaugh JJ). No joy! And the other three are so apoplectic they can’t even think of anything to write in dissent. Either that, or the CJ told them to wait for him to craft a consensus.

Well, here it is going into May, and still no consensus. So what happens? Either:

• Roberts leaks the draft to shake the Court up, or
• Sotomayor leaks it to start the demonstrations that are still going on.

Can Roberts still save Roe v. Wade?

If Roberts’ conduct in the Texas v. Pennsylvania case is anything to go by, he will try again to break the majority and get out a compromise opinion. He will harangue, browbeat, roar about riots in the streets, on and on and on. But this time, the majority will hold. In the Texas case, the Trump appointees might have had reason to fear popular sentiment and hope for the best. Not this time – not after Joe Biden made a mess of things, and he gave the game away. That’s right: he actually admitted that abortion kills a child, and is copacetic with it!

So those five Justices are not scared – they’re angry. And obdurate. One had to expect Thomas to go along with Alito’s logic in any case. That’s why Messrs. PFWTS have not talked at all about anyone trying to sway Thomas. But Trump’s appointees now know the score. Maybe they have their suspicions.

Alito and his colleagues won’t press for a resignation. Surely they know that Joe Biden – or rather, Barack Obama, who’s been handling him – will elevate Merrick Garland to the Court and thus create a worse problem. So they’ll figure, better the devil they know than the devil they don’t know. But they will never, never trust their liberal colleagues again.

And no, Roberts won’t save Roe v. Wade. Worse than that, someone has violated the unwritten Universal Justice to Justice Respect Law. That, those five Justices might never forgive.